Chad Readler testifies before the Senate Judiciary Committee during his confirmation hearing to be U.S. Circuit Judge for the Sixth Circuit, on Oct. 10. Diego M. Radzinschi/ALM

Chad Readler, a top Justice Department attorney up for a circuit court nomination, fielded a smattering of questions from Senate Democrats Wednesday over his role in defending controversial Trump administration policies.

The Senate Judiciary Committee heard from Readler and Eric Murphy, both of whom are being considered for seats on the U.S. Court of Appeals for the Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee.

Lawmakers peppered Readler with questions about his role as the DOJ Civil Division’s principal deputy assistant attorney general. Readler served as its acting chief until August, when the Senate confirmed Jody Hunt to head the division. In that acting position, Readler’s name topped a number of legal briefs defending Trump administration policies and actions.

Senators zeroed in on Readler’s role when the DOJ made the controversial June decision to drop its defense of the Affordable Care Act’s pre-existing conditions provision, in the case Texas v. U.S. While there are some exceptions, it’s rare for the DOJ to not defend existing federal law. Three career DOJ attorneys removed themselves from the case around the time of the shift. One of them—Joel McElvain, a Civil Division veteran—ultimately resigned.

“It was our job to decide what the legal position would be for the United States,” Readler said, in response to a question from U.S. Sen. Patrick Leahy, D-Vermont. “My role in the case was to consult again with our career servants who are in the government from administration to administration, and then we would make a recommendation up to the leadership.”

Readler added that U.S. Attorney General Jeff Sessions was “very clear” with Congress on how he reached the decision, which Sessions explained in a letter to Congress. Federal law requires the Justice Department to inform Congress when it refuses to defend a statute.

Leahy also pressed Readler on whether he stands by the DOJ’s position.

“Senator, it is my position to advocate for the United States. We would not make an argument if I thought it was unethical or frivolous,” Readler said.

Readler later declined to wade into the DOJ’s internal deliberations over the case, including which position he advocated for. He also told senators he wouldn’t speak about why career attorneys dropped off the case, while offering praise for McElvain.

“I don’t want to comment on specific decisions by career lawyers. We had one lawyer who did leave the department. I don’t think he’s commented on that publicly. He was a very good lawyer, he was a very strong member of our team,” Readler said of McElvain.

Readler was also asked about his positions on a number of other cases, including Trump’s now disbanded election integrity commission, the family separations policy, the travel ban and more.

On Trump’s former “zero tolerance” policy that separated families caught illegally crossing the border, U.S. Sen. Richard Durbin, D-Illinois, asked Readler how he felt defending it.

Readler said the Civil Division was not behind the separation policy, which was set by Sessions and the Department of Homeland Security. He also noted the Civil Division had over 300 career lawyers on immigration issues.

“[I]n April, while I said my name goes on every brief, which is the tradition for the head of the department, I’m not sure I was really even actually aware of those issues,” he said. “The cases were being handled, again, primarily by lawyers who’d been in the department for a long time.”

Readler and Murphy were both nominated to the Sixth Circuit in June. Both spent years at Jones Day, working at the firm’s office in Columbus, Ohio. Murphy, a former clerk for retired U.S. Supreme Court Justice Anthony Kennedy, left the firm in 2013 to become Ohio’s solicitor.

The two lawyers were the first of Trump’s judicial nominees to have confirmation hearings since the Senate confirmed Brett Kavanaugh to be a U.S. Supreme Court justice.

Wednesday’s session was held despite the fact that one of Readler and Murphy’s home-state senators—Sen. Sherrod Brown, D-Ohio—did not return blue slips for either nominee. Sens. Cory Booker, D-New Jersey, and Sheldon Whitehouse, D-Rhode Island, criticized moving forward with their nominations, while Utah Republican Sen. Mike Lee, who presided over the hearing, stated that the blue slip was a custom “at best of an inconsistent application.”

Brown, who spoke at the hearing along with Ohio Republican Sen. Rob Portman, said he sought to work with White House Counsel Donald McGahn on judicial nominees, including offering names for whom he would offer a blue slip. “The White House chose to move forward with these partisan nominees anyway,” Brown said.

Brown and Portman also introduced, and praised Pamela Barker and Sarah Daggett Morrison, two district court nominees heard on Wednesday. Both are up for seats in the Northern District and Southern Districts of Ohio, respectively.

Senators also questioned Rossie D. Alston Jr., nominated for a seat in the Eastern District of Virginia, on Wednesday. U.S. Sen. Tim Kaine, D-Virginia, introduced Alston, a judge on the Court of Appeals of Virginia.

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